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Native American: Priorities on the Hill

The beginning of a new congressional term brings a new list of priorities and promises for American Indians. FCNL is listening closely to what members of Congress and the administration are saying and is working with our partners and colleagues to ensure that U.S. leaders consider these priorities. On February 5, Sen. Byron Dorgan (ND) and the other members of the Senate Committee on Indian Affairs held their first business meeting of the year and stated that health care, tribal law and safety, education, tribal recognition, housing, and the prevention of Indian youth suicides are the committee’s top concerns for this session of Congress. The committee followed the business meeting with an oversight hearing to discuss the best ways to move forward on Indian health care.Michelle Obama visited the Department of the Interior on February 9 and addressed the employees in the building. “For those of you focused on meeting the federal government’s obligations to the Native Americans,” she said, “understand that you have a wonderful partner in the White House right now. Barack has pledged to honor the unique government-to-government relationship between tribes and the federal government. And he’ll soon appoint a policy advisor to his senior White House staff to work with tribes and across the government on these issues such as sovereignty, health care, education — all central to the well-being of Native American families and the prosperity of tribes all across this country.” Watch or read Michelle Obama’s speech at the Department of the Interior.

Interior Secretary Ken Salazar was the focus of an oversight hearing on February 12. His list of priorities for Native Americans included economic opportunity, energy development and climate change, education, and law enforcement. The Senate Committee on Indian Affairs discussed other issues with Salazar, including the overbearing bureaucracy of the Bureau of Indian Affairs, trust litigation, water settlements, tribal recognition process, and health care.

TAHLEQUAH, Okla. – While browsing the Internet, Prairie Band Potawatomi tribal citizen and U.S. Army veteran Richard Adame was surprised to find a news article about New Mexico legislation and subsequent negotiations with American Indian veterans in that state to restore state taxes wrongly deducted from their pay by the Department of Defense.

“This story concerns all Native Americans who ever served in the U.S. Armed Forces. We were unjustly and illegally taxed by our individual states while serving in uniform,” Richard Adame, shown here in his military portrait, said.

Adame immediately began to search for information on the law and contacted national media outlets, some veteran’s representatives and politicians. Adame said with the exception of Native American Times he was ignored because, he thinks, the law protecting American Indian military pay is virtually unknown by all.

“Two years after I retired, I found out that I and every other Native American who claimed the reservation as our homes were illegally taxed. But, no one seems to know. . . I contacted a few vet reps and they never heard of this. This injustice was not even known to us ground pounders. We were just doing our jobs. How were we supposed to know that we were being illegally taxed?” he said. “I grew up in Kansas on the reservation and joined the Army out of a sense of patriotism and pride in my country. Most of the men and women in my family served in the Armed Forces.

Deduction of state income taxes from the pay of American Indian veterans living on reservation land at the time of their entrance into active duty service was first prohibited by federal law under the Soldiers and Sailors Civil Relief Act of 1940, Section 514, and continued under the newer version of the law, the Service members Civil Relief Act of 2006, section 511e. Other laws and legal opinions uphold the protection of that pay.

But according to language in HR 5275 introduced to the United States 108th Congress in October 2004 by New Mexico Democratic Senator Tom Udall, the DoD withheld state income taxes anyway. HR 5275 intended to restore the pay of all American Indian veterans across the country from whose pay state taxes were wrongly deducted.

“The law is now well established that this policy was wrong and, in keeping with tribal sovereignty, the policy of withholding state taxes on these soldiers’ pay was changed. This position is reflected in administrative opinions, Fatt v. Utah, 884P2d 1233 (Utah 1994), a 2000 Department of Justice opinion, a Department of Defense policy instituted in 2001, and most recently, in Public Law 108-189, a law that passed this House unanimously,” Udall said in his introduction of HR 5275 to the House Armed Services Committee.

While the DoD stopped the improper taxation of those veterans in 2001, the changes did not apply retroactively for veterans whose pay was taxed prior to that year. A statute of limitations could present obstacles as well.

“The result is that hundreds, perhaps thousands, of tribal members whose state taxes were improperly withheld during their service to our country are unable to recover the money that is owed to them,” Udall stated.

Sadly, HR 5275 faced immediate death in the 108th HASC for lack of support. Since then, no action has been taken to restore the pay of reservation-based American Indian veterans outside of New Mexico.

Adame has questioned whether restoration of the veterans’ pay might be settled legally with a class action lawsuit but would rather see Congress step up to reintroduce legislation like HR 5275 and bring justice to all American Indian veterans.

“This story concerns all Native Americans who ever served in the U.S. Armed Forces,” he said. “We were unjustly and illegally taxed by our individual states while serving in uniform.”

In Oklahoma, the topic of taxation of American Indians has always been controversial but was settled unanimously by the U.S Supreme Court in the 1993 case, “Oklahoma Tax Commission v. Sac and Fox,” filed by attorney William Rice, associate professor of law and co-director of the Native American Law Center, University of Tulsa College of Law.

“The state lost,” Rice said. “How the veterans’ case would play out is arguable. But obviously Oklahoma has no authority to levy the tax in the first place and the SSCRA should protect them in the second.”

Rice said the Court generally has ruled that the Constitution and federal law place the tribal relationship with the federal government and not states, at least in areas defined as Indian Country, a legal term applying to allotments, tribal lands, reservations and other categories of Indian-owned properties.

Oklahoma Tax Commission law now states active duty pay is exempt when:

“The income is compensation paid to an active member of the Armed Forces of the United States, if the member was residing within his tribe’s “Indian Country” at the time of entering the Armed Forces of the United States, and the member has not elected to abandon such residence.”

Rice thinks there would be even more affected veterans in Oklahoma than in New Mexico.

“I suggest many of them would be residents of Indian Country when they joined up,” he said.

Adame wants his pay and that of all other American Indian veterans restored and is hoping affected veterans will contact tribal, regional and national veterans’ organizations to make them aware of the law. He said veterans should also contact their Congressional representatives to request they reintroduce and support legislation like HR 5275. He also posted online a petition to restore the veterans’ pay..

Adame hopes the new Obama administration will walk its talk as it promised to respect Indian sovereignty and honor tribal nations’ government-to-government relationship.

First Lady Michelle Obama told employees at the Interior Department in February that American Indians have a “wonderful partner in the White House right now,” and her husband plans to improve that relationship even more, according to an Associated Press story.

Adame wants American Indians in political office to help rectify the wrongs against him and other veterans.

“These newly appointed government Native American politicians and advocates must also stand up for us, the cheated veterans.”

I am vey happy to hear that the present administration is taking action to restore American INdian rights, and to support improving the deplorable conditions in which many of these people are forced to live. Justice for them is long overdue.

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